These district attorneys should make jail the exception and eliminate cash bail.
By Emily Bazelon and Miriam Krinsky The New York Times Op. Ed., Dec. 11, 2018
In the past two years, a wave of prosecutors promising less incarceration and more fairness have been elected across the country.
Republicans and Democrats are among the reformers, and they’re taking over district attorney offices in red and blue states. Five progressive D.A.s have been elected in major cities in Texas, of all surprising places, most recently in Dallas and San Antonio. In Houston, Kim Ogg was elected D.A. two years ago, and in the face of opposition from more than a dozen local judges, she has supported a lawsuit challenging the cash bail system for misdemeanor cases.
Local prosecutors, who handle 95 percent of the criminal cases brought in this country, are well positioned to take reform into their own hands because of their broad discretion over whether and how to prosecute cases and what bail they decide to seek against defendants.
And they’re exercising that discretion in new ways.
In Chicago, State Attorney Kim Foxx raised the threshold for felony theft prosecution to reduce the number of shoplifters who go to jail. In Philadelphia, the D.A., Larry Krasner, has instructed his prosecutors to make plea offers for most crimes below the bottom end of Pennsylvania’s sentencing guidelines. In Kansas City, Kan., District Attorney Mark Dupree created a unit to scrutinize old cases haunted by questionable police practices despite opposition from local law enforcement. More broadly, many of these new, progressive prosecutors are declining to prosecute low-level marijuana offenses and have stopped asking for bail in most misdemeanor cases.distr
But they’ve also encountered tough headwinds. We’ve seen these new district attorneys in action, and with input from two policy groups, the Justice Collaborative and the Brennan Center for Justice, we’ve come up with a set of principles and priorities to promote a progressive model of prosecution. There are 21 principles in all that offer D. A.s a blueprint to transform both their own offices and, with a push from advocates on the outside and help from other leaders on the inside, their justice systems. Since laws and practices vary from state to state, some of our recommendations won’t suit all jurisdictions. We intend them as a starting point.
Our recommendations begin with the premise that the level of punishment in the United States is neither necessary for public safety nor a pragmatic use of resources. Prosecutors can address this first by routing some low-level offenses out of the criminal justice system at the start. For the cases that remain, they can help make incarceration the exception and diverting people from prison the rule, a principle advanced by the district attorney in Brooklyn, N.Y., Eric Gonzalez. Finally, prosecutors should recognize that lengthy mandatory sentences can be wasteful, since most people age out of the period when they’re likely to reoffend, and also don’t allow for the human capacity to change.
As prosecutors know, locking people up makes them more prone to committing offenses in the future. They can lose their earning capacity and housing, leaving them worse off, often to the point of desperation. And so the community is often better served by interventions like drug or mental-health treatment, or by restorative justice approaches, in which a person who has caused harm makes amends to the victim. In some cases, the best response is to do nothing.
Achieving results, of course, matters more than making promises. In Brooklyn last Friday, the police arrested Jazmine Headley as she sat on the floor of a food stamp application office because there were no available chairs. The officers yanked her 1-year-old son from her arms, and the D.A.’s office charged her with resisting arrest and other offenses. Although prosecutors agreed to release her without bail, Ms. Headley was held at Rikers Island on a warrant from New Jersey for credit card fraud. The arrest was captured on video and outrage ensued. On Tuesday, Mr. Gonzalez said he was “horrified by the violence” on the video, promised to investigate and moved to dismiss the charges. But this arrest shouldn’t have happened in the first place, and the response from the D.A. illustrates the back-and-forth between reformers on the outside and an elected prosecutor on the inside.
If making jail the exception in criminal cases sounds revolutionary, it shouldn’t. In many cities and counties, misdemeanors make up about 80 percent of the criminal docket. With few exceptions, locking people up for these low-level offenses, and for felonies that don’t involve serious violence or injury, is the wrong approach. The states of California, New Jersey and New York have cut the rate of incarceration by about 25 percent even as crime has fallen at a faster pace than it has nationally. In other words, locking up fewer people has correlated with making states safer, not less safe. Nationally, the population of teenagers in detention has also dropped by half alongside a major decline in the crime rate among young people. Internationally, crime is down in developed countries where incarceration always remained relatively low.
To keep people out of jail who don’t need to be there, prosecutors have to rethink whether and how they charge defendants in criminal cases. Too often, they bring the maximum charges or stack charges to gain leverage: The bigger the threatened sentence, the more reason defendants have to plead guilty rather than risk everything at trial. A fair process begins with screening cases rigorously as early as possible, so cases supported by only weak evidence can be declined or dismissed. When charges are brought, they should reflect the facts and circumstances of each case, so that they’re designed to achieve a just result, not the heaviest possible penalty.
Prosecutors should also treat kids as kids. This means taking science and adolescent brain development into account, and not criminalizing typical adolescent behavior such as fistfights or infractions at school. It also means expunging juvenile records for many of the cases that are resolved or when no new charges are incurred after a few years so young people have a second chance. And it means refraining from trying people under the age of 18 as adults, except in very limited circumstances involving serious violent offenses.
Prosecutors should work to end the devastating impact the justice system has on people because they’re poor, by pushing for the elimination of cash bail and fines and fees that people cannot reasonably afford to pay. D.A.s should also push to shrink the number of people — currently about five million — who are under some form of probation or parole. Excessive supervision increases the likelihood that people who are otherwise at low risk of reoffending will end up incarcerated for technical violations like breaking curfew. Some states have shortened supervision periods with no increase in reoffending.
Certain criminal charges and convictions carry especially harsh consequences for immigrants, triggering detention and deportation proceedings. Being jailed before trial also increases the likelihood of being detained and deported by federal immigration officials. Entangling the local justice system in immigration enforcement erodes trust, discouraging immigrants from reporting crime and appearing as witnesses in court. To build trust, prosecutors should consider the immigration consequences of the charges they choose to bring.
Too often, D.A. offices operate like a black box, with crucial decisions about charging and pleas hidden from public view. District attorneys should collect and share data so that the public can hold the system accountable. They should track the outcome of cases by race to flag disparities, findings of prosecutorial and police misconduct, and the number of people who go to jail because they can’t pay bail. They should also post data on diversion programs, incarceration rates and what all this costs taxpayers.
In a democracy, people tend to value and uphold the law when they perceive it as fair. As these new D.A.s reimagine the American model of prosecution, they should be pragmatists, focused on the well-being of the communities that elected them. Fairness and safety aren’t a trade-off. They complement each other. This new corps of prosecutors can lead the way toward doing more justice with more mercy.
Miriam Krinsky is a former federal prosecutor and the executive director of Fair and Just Prosecution.
Emily Bazelon is a staff writer at the Magazine and the Truman Capote Fellow for Creative Writing and Law at Yale Law School. She is also a best-selling author and a co-host of the “Slate Political Gabfest,” a popular podcast.